Unlawful harassment in the workplace: an update for employers

Harassment remains a significant risk for employers, with recent case law and forthcoming legislative changes highlighting the importance of preventing inappropriate conduct and responding effectively when concerns arise.

The legal framework

Section 26 of the Equality Act 2010 (EqA 2010) provides three forms of harassment:

• Harassment related to a protected characteristic (section 26(1))
• Sexual harassment (section 26(2))
• Less favourable treatment for rejecting or submitting to sexual, or sex or gender reassignment-related conduct (section 26(3)).

Under section 26(1), harassment related to a protected characteristic occurs where there is unwanted conduct related to that characteristic and the conduct has the purpose or effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

The second element is assessed by reference to the perception of the person subjected to the conduct, and whether it is reasonable for the conduct to have such an effect, having regard to all the circumstances.

Section 26(2) provides that sexual harassment occurs where a person engages in unwanted conduct of a sexual nature which has the purpose or effect of violating another’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Unlike section 26(1), there is no need to show a link to a protected characteristic; the sexual nature of the conduct is enough. Section 40A of the Equality Act 2010 places an additional duty on employers to take reasonable steps to prevent sexual harassment of employees. From 30 October 2026, under the Employment Rights Act 2025, this will be increased to a duty to take ‘all’ reasonable steps.

Section 26(3) provides that harassment occurs where a person is treated less favourably because they rejected, or submitted to, unwanted conduct of a sexual nature or conduct related to sex or gender reassignment, whether that conduct came from the person treating them less favourably or from someone else.

From 30 October 2026, the Employment Rights Act 2025 will also further extend employers’ liability to third-party harassment, for example from customers or suppliers, unless the employer has taken ‘all’ reasonable steps to prevent it.

Recent case law, including Hayes v West Leeds Civils Ltd and CL v Mitie Limited, provides important lessons for employers addressing workplace concerns around unlawful harassment:

• Intention is not required

The statutory test looks at purpose or effect. An individual may consider their conduct to be harmless; that does not prevent a finding of harassment.

• Participation does not equal consent

In Hayes, the claimant occasionally joined in, but the Tribunal accepted that this was an attempt to fit in and not genuine acceptance of the conduct complained of.

• Cumulative effect matters

A Tribunal may look at the cumulative effect of incidents together. A hostile environment may be created by repeated low-level behaviour: exclusion, nicknames, ‘jokes’ and dismissive responses from management.

• ‘Banter’ is not a defence

In both cases, conduct framed as humour or nicknames constituted unlawful harassment. The effect on the recipient, judged with regard to whether that effect is reasonable, is what matters.

• Management must not minimise or dismiss concerns

Managers need training to recognise and respond appropriately to harassment complaints. Attempts to minimise an employee’s concerns are likely to worsen the employer’s position.

• Training must be specific

Generic equality training is unlikely to be sufficient. Training should specifically address workplace language, nicknames, ‘jokes’ and the legal test for harassment.

What should employers do now?

Employers should take prompt, effective action to address an employee’s complaint: where an employee resigns in response to the employer’s failure to address a harassment complaint, or due to the employer’s inadequate response to a harassment complaint, the employer may be liable for constructive unfair dismissal.

Further, where an employee raises a complaint of harassment, it will usually be a ‘protected act’ under section 27 EqA 2010.

If the employee suffers a detriment because of that protected act, they may have a claim for victimisation.

Employers should*:

• Conduct a review of workplace culture, with specific attention to language, nicknames and ‘in-jokes’ that may relate to protected characteristics
• Update policies and training to address the specific scenarios illustrated by these cases
• Ensure line managers understand their responsibility to challenge inappropriate language rather than dismiss it
• Treat complaints seriously and investigate promptly, avoiding any retaliatory action
•  Recognise that the cumulative effect of apparently minor conduct can create legal liability and significant financial exposure.

*This is not an exhaustive list.

The creation of this article was assisted by Tobi Costello, Trainee Solicitor.